Альманах семейного права = Family Law Almanac. Вып. 2. Правовое регулирование имущественных отношений супругов современное состояние и перспективы = L

Matrimonial property system in Japan with a focus on the gender equality perspective

the ownership is transferred to the other as a gift1. In a case where a property purchased with the income from the husband's running an inn was registered in the wife's name, the Supreme Court held that the mere facts that the wife being the holder of the sales contract and the registration of the property is in her name does not constitute grounds to admit the property as her own2. Another case was that it challenged the constitutionality of Art 762(1) and the Income Tax Act, which imposes income tax on the husband's income as his pecuniary property as it is stated that property acquired in the name of that party during the marriage is the property solely of that party3. The husband declared a half of his annual income for income tax assuming the other half is his wife's income, since his annual income was derived from her cooperation in the household work. The Supreme Court, however, rejected the claims and held that neither of these provisions violated Art 24 of the Constitution (which stipulates the dignity of the individual and the essential equality of the two sexes in family life). It ruled that Art 762(1) is a provision that applies equally to both husband and wife, and that with regard to the cooperation and contribution of the other in the acquisition of property by one of the spouses, there are separate provisions for the right to claim division of property (Art 768), spousal right of inheritance and claim for support as a spouse (Arts 752 and 760) to cover in adjustment of marital property relations between the spouses. Thus, the Court interpreted these laws to ensure that no substantive inequality exists between the spouses.

On the other hand, theories supported by the scholars have taken the view that the wife’s contribution through housework should be reflected more positively in the attribution of property, with a view to protecting housewives, and that common property should be recognised to a certain extent4. In response to these ideas, lower court decisions have come to rule that the surplus of living expenses and the property acquired from them are consid-

1  See Tsuneoka, F. (2020) Kazoku-ho (Family Law), Shinsei-sha at 67. There is a recent case in lower court where it has recognised a ‘one-half’ co-ownership interest, regardless of the registered name of the property, based on the position that the income earned by one of the spouses during the marriage was acquired jointly and in equal shares by the spouses, even if the other did not contribute financially to the acquisition of that property. Tokyo District Court, 27 December 2012, Hanrei Jiho Vol. 2179 at 78.

2  The Supreme Court, 14 July 1959, Minshu (Supreme Court Reports) Vol. 13 No. 7 at 1023.

3  The Supreme Court, 6 June 1961, Minshu Vol. 15 No. 8 at 2047. See also Matsuhisa, K. (2023) ‘Otto no shotoku to kyo-yu zaisan (Income of the husband and the property held in co-ownership): Judgment of the Supreme Court Grand Bench of 6 June 1961’ in A. Omura and

M.Okino (eds) Leading Cases in Civil Law III 3rd Edition, Yu-hikaku at 22–23.

4  Matsuhisa (2023) op. cit. at 23.

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ered to be the common property of the couple1. To date, in court practice, the established view is that property acquired through conjugal cooperation during marriage is ‘substantial common property’, which is to be liquidated in the division of property at the time of divorce, with the ratio being set at one-half2 assuming that the degree of contribution of each party be equal.

(2) Sharing of living expenses during marriage (Art 760)

Art 760 regulates the cooperative and solidarity nature of marriage and the property relations between spouses; it states that a husband and wife share the expenses that arise from their marriage, in consideration of each asset, income, and all other circumstances. The obligation of sharing marital expense is interpreted as to ensure one of the spouses maintains the same standards of living as the other.

It is understood that marital expenses include the costs necessary for the couple to maintain their lives together with their minor children3. It includes not only costs related to daily life such as food, clothing, medical care, school fees, and entertainment cost but also extraordinary expenses such as insurance, future savings, and expenses concerning childbirth. However, what can be included in the scope of marital expenses considered depending on various factors such as the couple's income, social status, and other factors so that the sharing of marital expenses does not necessarily mean that couples bear an equal proportion of the costs to maintain their married life.

The amount and method of sharing marital expenses is usually decided through discussion between the spouses, but if this cannot be agreed, the couple may seek a disposition by a family court tribunal4.

1  Noumi, Y. and S. Kato (eds) (2019) Ronten Taikei: Hanrei Mimpo 10 Shinzoku (Systematised issues: Judicial precedents of Civil Code 10 on kins/relatives), Dai-ichi Hoki at 134–135.

2  Tsuneoka (2020) op. cit. at 69.

3  Regarding cost of child support as a part of marital expenses, children here are not synonymous with minors, but mean children who cannot be expected to live financially independent. Therefore, even if they have reached the age of majority (now 18), university students are regarded as ‘immature child’ if it is considered reasonable for them to receive a university education in light of the family's standard of living, and thus their school fees are included in the marital expenses. Also, there is some debate as to whether the cost of raising a child is included in marital expenses if the child is neither a biological nor an adopted of the couple but a stepchild of one of them. The court allowed a wife who was raising her husband's child to claim the child support payment from her estranged husband living with another woman (decree of Tokyo Family Court, 18th January 1960, Kagetsu (Monthly Bulletin of Family Court) Vol. 12 No. 5 at 153).

4  Appendix Table 2 of Family Affairs Procedure Act 2011 at 2(2) ‘Disposition regarding the sharing of living expenses’.

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(3) Joint liability for debts incurred from daily household affairs (Art 761)

Art 761 also regulates the joint nature of marriage that the spouses were equally and jointly liable, even in relation to the third parties. It states that when either husband or wife commits a juristic act regarding daily household affairs, the other is also liable for any debt incurred1. It is interpreted that husband and wife have mutual agency, then even in cases where a contract is concluded by the wife with her signature in the husband's name, the effect of the contract is attributed to and the responsibility of both spouses2. This was also expected to function as a source of credit for wives, who in many cases lacked their own resources, in performing juristic acts such as buying and selling or lending money for daily household needs. However, as Art 761 aims to protect third parties who deal with the couple, the other spouse is exempted from joint and several liability if he or she has given notice in advance that he or she will not be liable to the third party.

The spouses must be jointly and severally liable for legal transactions of daily household affairs performed by one of them, even if the other spouse is unaware of this fact. The problem then arises when one of the spouses performs a legal transaction beyond ‘the scope of daily household affairs’, and the third party believes that the act is within ‘the scope of daily household affairs’ and has ‘good reason’ for believing this. In such cases, the Civil Code has a provision (Art 110) to protect the third party as such transactions are made by unauthorised persons.

There are no criteria for determining whether acts performed by one of the spouses fall within ‘the scope of daily household affairs’ as referred to in Art 761. The courts have held that the decision does not depend merely on the circumstances of the couple's life together or the purpose of each act, but also it considers the type and nature of the act in question3. Cases in which the court ruled that the act was beyond ‘the scope of daily household affairs’ in

1  In contrast, under the Meiji Civil Code, the wife became incompetent to act legally by marriage and despite that the wife in reality was responsible for dairy household chores, she was ‘deemed to be the agent of the husband in respect of daily household chores’ which made the husband liable for obligations arising from her action. The 1947 amendment to the Civil Code abolished the system of the wife's incapacity and inferiority position as a reflection of the gender equality principle in the Constitution.

2  Sapporo High Court, 5 November 2010, Hanrei Jiho No. 2 101 at 61. The court decided that the wife’s act to sign a TV receiver contract in her husband’s name falls within ‘the scope of daily household affairs’ and is valid accordingly.

3  The Supreme Court, 18 December 1969, Minshu Vol. 23 No. 12 at 2476.

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view of the nature of the act include the wife's act of selling real estate owned by her husband without the husband’s permission to finance the construction of a factory for their child1.

3. Distribution of matrimonial property at dissolution of marriage

Under the said separate property system, the property acquired in one’s own name during the marriage is in principle one’s own property, which means that the wife, as a housewife, theoretically has no property belonging to her. This does not cause much inconvenience during the marriage, but when the marriage is dissolved, there is a real inequality between the spouses as the property does not belong to the wife. In response to this practical problem, the debate has centered on how to ensure equity between husband and wife to guarantee the property rights of the wife as a full-time housewife at the time of dissolution of marriage, such as divorce or by death of one spouse.

(1) Sharing marital expenses during separation

The actual issue of the obligation to share marital expenses arises when a couple is separated, when the marriage has broken down or when divorce proceedings are pending. Since Art 760 presupposes that a couple is still married2, the issue is whether it is possible to claim the sharing of marital expenses even if the couple is yet to divorce but living apart.

Court precedents and prevailing theories interpret the marital support obligation (Art 752) as a duty to maintain the same standards of living as oneself. It is considered that as long as the marriage continues, the person responsible for sharing marital expenses should, in principle, bear the same level of expenses as when they lived together, but since this may place an excessive burden on the person responsible, the obligation to share marital expenses is reduced by taking into consideration the degree of marriage breakdown and the circumstances and culpability that led to this breakdown. For example, the court decided that when a marriage has broken down and both spouses lack the expectation and effort to restore a cooperative relationship, the amount of the marriage expenses to be shared is reduced to some extent3, and

1  The Supreme Court, 19 July 1968, Hanrei Jiho No. 528 at 35.

2  The Supreme Court has ruled that sharing of marital expenses cease to exist when the marriage ends as Art 760 is applicable based on the assumption that the marriage is ongoing, the Supreme Court, 21 September 1971, Minshu Vol. 25 No. 6 at 823.

3  Decree of Tokyo Family Court, 14 September 1972, Kagetsu Vol. 25 No. 11 at 98.

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in another case that the court rejected a claim for sharing marriage expenses made from a spouse who has committed adultery ruling that a claim from a spouse responsible for causing marital breakdown was an abuse of rights1. There are also cases in which the degree of sharing is taken into consideration according to the other party's financial capacity2.

If the fulfilment of the obligation to share marital expenses is over a long period of time, it can be assumed that circumstances may change along the way. In such cases, it is possible to apply for in-court mediation to alter the amount of the expenses once determined3. In this regard, there is a court decision that even in cases where the parties have agreed on the amount and period of sharing of child support, this can be modified if there has been a change in circumstances such that the original decision is no longer deemed reasonable in light of the actual circumstances4.

(2) Distribution of marital property at divorce (Art 768)

When it comes to the dissolution of the marriage by divorce, regardless of the method of divorce5, the law recognizes that the right to claim a share of property arises between divorcing parties (Art 768). The details of the division of property may be determined through discussion between the parties, but if the parties are unable to communicate with each other and/or fail to agree, it is left to the discretion of the family courts to make a ruling. They may apply to the family court for in-court mediation or adjudication for the division of property6. The parties may also be able to file a petition for ancillary disposition regarding the division of property, in which case the court decides on the division of property together in ruling the divorce by court decree7.

1  Decree of Tokyo Family Court, 31 July 2008, Kagetsu Vol. 61 No. 2 at 257.

2  Decision of Fukuoka High Court, Miyazaki Branch, 12 January 1987, Kagetsu Vol. 39 No. 10 at 86.

3  Art 154 of Family Affairs Procedure Act 2011.

4  Decree of Tokyo Family Court, 14 August 1962, Kagetsu Vol. 14 No. 12 at 99; Decision of Nagoya High Court, 19 February 2016, Family Court Journal No. 8 at 50.

5  Divorce is possible by agreement between the parties (Art 763) in which case no particular ground is required to dissolve their marriage. Just About 88 % of divorces in Japan are this ‘divorce by mutual consent’ type which has no court involvement. The rest 12 % of divorces are ‘divorce by in-court mediation’ (8–9 %) and ‘divorce by court decree’ (less than 1 %).

6  Art 768(2), and Appendix Table 2 of Family Affairs Procedure Act 2011 at 2(4) ‘Disposition regarding the distribution of property’.

7  Art 32(1) of Personal Status Litigation Act 2003.

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This provision has in fact been used by the courts as an instrument to protect non-income spouses, in most cases wives in a one-sided divorce by granting some matrimonial property at separation1. When property is acquired in the name of one spouse (usually a husband), but the other (a wife) contributed to obtaining it, such contribution is to be taken into consideration when determining the distribution of the property they take account of the wives' household works as a factor in acquiring matrimonial property. The courts have decided that legal characteristics of a division of property at divorce is a combination of the following two elements: 1) liquidation of substantial joint property held by the spouses during the marriage, and 2) spousal support after the divorce2. Scholars do not dispute that the division of property has a liquidating element, but the prevailing view on post-divorce maintenance is that it is not maintenance but correction or compensation for the economic imbalance between the spouses.

The Supreme Court has also held that compensation for emotional distress suffered by one of the spouses as a result of the divorce being unavoidable can also be included in the property division3. It includes compensation for emotional distress caused by the divorce itself due to a spouse's culpable conduct, and compensation for damages caused by the individual tort that caused the divorce, such as domestic violence by the spouse. There are no clear standards for the calculation of the amount regarding compensation for the divorce itself, and the court decides comprehensively based on overall factors of the cause of the marriage breakdown, the duration of the marriage, the financial situation of the parties, the presence or absence and age of children and other factors.

While the right to claim property division is limited to two years after divorce, the right to claim compensation for loss or damage caused by tort expires after three years (Art 724), so even if two years have passed since the divorce, it is possible to claim divorce compensation separately from the property division within three years. Even if once a property division was made but it did not include an element of compensation for damages or it was insufficient to compensate for emotional distress, it is possible to make a separate claim for compensation, the right to claim compensation is not entirely extinguished by the division of property4.

1  The Supreme Court, 23 July 1971, Minshu Vol. 25 No. 5 at 805. 2  Ibid.

3  Ibid.

4  Ibid. However, a different view among some scholars have taken that such compensation should be considered separately from the division of property in divorce, as it is an issue which lies in the area of property law.

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(3) Liquidation of marital property in practice

Court practice on property division focuses on the liquidation of marital property, while spousal support after divorce is positioned as a complementary measure in cases where the liquidation of marital property or divorce alimony is not sufficient.

If liquidation in the division of property is regarded as the division of the couple’s substantial common property, a problem often arises when a mortgage remains outstanding on property purchased as a matrimonial residence at the time of divorce. For example, if a spouse who is not the holder of the mortgage wants to continue to live in the residence after the divorce, a property division may be made in which it is agreed that this spouse will also share in the mortgage or assume the entire balance of the loan. However, this requires that the creditor agrees to the change in loan repayments, and without the creditor’s consent the other spouse cannot continue to live in the residence after the divorce. In the practice of property division in the courts, the value of the marital residence is often treated as zero if its mortgage has not been paid off and is not included in the property division. Therefore, if such ‘over-mortgage housing’ was registered as common property of the couple and the couple share the loan as joint debtors, it is dealt with the provisions of the property law. However, it is possible, at the discretion of the court, to make even an ‘over-mortgage housing’ subject to property division1.

Other issue in relation to the division of property is that whether it is possible to claim marital expenses occurred in the past retrospectively after divorce. The Supreme Court has held that since the court should consider all circumstances of both parties when determining the amount and method of property division in divorce proceedings, it shall include the benefits to liquidate the marriage costs that one of the parties had borne unduly in the past2.

It was up to the discretion of each family court to decide which method to adopt in the past, the courts are now required to determine the sharing obligations in a more objective and reasonable manner at the right time and to ensure that the obligations are fulfilled. In 2003, the Tokyo-Osaka Child Support Study Group published a ‘Standard Calculation Table’ for calculating both

1  See Tsuneoka (2020) op. cit. at 114. However, Kanazumi as a legal practitioner argued that such cases to include ‘over-mortgage housing’ in property division at the court discretion are extremely limited and not common in practice. Kanazumi, M. (2019) ‘Comments on the Marital Property System from the Eyes of the Attorney’ Kazoku <Shakai to Ho> (journal of

socio-legal studies on family law) No. 35 at 62.

2  Judgement of the Supreme Court, 14 November 1978, Minshu Vol. 32 No. 8 at 1529.

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marital expenses and child support, which was subsequently used by family courts throughout the country and became firmly established1. However, the Standard Calculation Table is criticised in that the calculation will be understated as it deducts taxes, social insurance contributions and other expenses in advance from the gross income when calculating the basic income of the responsible person, which accounts for approximately 60 % of the gross income, and the remaining 40 % is used as the basic income to calculate the marital expenses and child support. A revised Standard Calculation Table was therefore proposed in December 20192, and is currently being used.

In addition to the division of property at divorce, since April 2007 the system to distribute pension benefit was introduced which allows a non-income party to divorce (mostly wives) to receive up to a half of the pension payment of the other party (mostly husbands) in the future when it becomes payable (e.g. when the ex-husband reaches the age of 65). Prior to the implementation of this system, it said that middle aged ‘housewife wives’ were reluctant to get divorced because they would not be able to receive pension as a spouse if they divorced before the husband reached the vesting age.

(4) Distribution of matrimonial property as a surviving spouse

Given that there are extremely few provisions on the matrimonial property system in Japan, it resulted in spousal inheritance rights playing a role in the event of the dissolution of a marriage upon death of one spouse in order to protect the surviving spouses in terms of ownership of marital property. This is made more evident, in particular, by the 1980 amendment to the inheritance law in Civil Code, which does not amend the existing law regarding the matrimonial property system but increases the spousal statutory share from 1/3 to 1/2. It was understood that “the spousal inheritance right in Japan is a ‘reward’ to the fact that property relations during a couple’s lifetime were only formally regulated by a simple separate property system”3. Due to the lack of law concerning the settlement of matrimonial property on the dissolution

1  Decision of the Supreme Court Decision, 26 April 2006, Kagetsu Vol. 58 No. 9 at 31.

2  Legal Training and Research Institute (2019), Empirical Study on the Calculation of Child Support and Marital Expenses, Ho-so-kai (Lawyers Association). See the Supreme Court website for the revised Standard Calculation Table of each pattern of the household at https://www. courts.go.jp/toukei_siryou/siryo/H30shihou_houkoku/index.html (accessed 23 January 2025).

3  Harada, S. (2004) ‘Fuyo to souzoku: Furansu ho to hikaku shitemita Nihon no tokushitsu (Support and inheritance: Characteristics of Japanese Law in Comparison with French Law)’ in K. Okuyama et al (eds), Fuyo to souzoku (Support and Inheritance), Keiso Shobo at 226.

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of marriage by death, the same idea of liquidation of the couple's property (Art 768) may be applicable.

More recently, a major amendment to inheritance law in Civil Code was made in 2018 which established spousal residence rights to protect the surviving spouse after the death of the other (Arts 1028–1041)1. The protection of the surviving spouse's residence in the event of inheritance has long been discussed as an issue covered under the inheritance law. In drafting this legislation, the legislators considered that it was desirable, both mentally and physically, for the elderly surviving spouses to secure the residence in which they have lived in so far as the family home if they wish to do so. This is to ensure that surviving spouses would be able to obtain a reasonable amount of money for living expenses, medical care, and nursing in older age, as well as for the residence when they acquire estates at the time of inheritance2.

4. Child support after separation of the parents

Both parents are obliged to support their children upon separation as they are still parents even after divorce, under the general provisions on support (Art 877(1)). There is no difference in the order of the duty to support between the parent who has custody and the non-resident parent.

The degree of support that a child can demand is the same level of living standard as that of the parent who has obligations to support the child. However, there is no obligation for a non-resident parent to support a child by providing support beyond their means or which would result in a sacrifice to themselves as it should not place an excessive burden on them but should be determined according to individual circumstances.

In family court practice, claims for child support are often made by the parent living together with the child upon the other parent to share marital expenses or in the case of divorcing couples a request from the parent with custody to share or increase the cost of child support. If the custodial parent claims as custody costs, an ancillary petition can be filed in the divorce

1  The need for inheritance legislation in line with the conditions of modern society, such as an ageing society, late marriages and non-marriage, was also pointed out, and a working team to study inheritance legislation was established by the Ministry of Justice in 2014 to conduct a major review of inheritance law. Following the results of the working team's deliberations, an Inheritance Relations Subcommittee was established in the Legislative Council in 2015, and in 2018 a bill prepared based on the ‘Outline on Amendments to the Civil Code (Inheritance Relations)’ and was submitted to the Diet, which passed the amended law on 6th July 2018 (enacted from 1st July 2019 although some provisions came into force in stages around this date).

2  Tsuneoka (2020) op. cit. at 445.

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proceedings1. On the other hand, in the case of a claim for support, an ancillary petition cannot be filed due to the absence of provisions in Personal Status Litigation Act 2003. With an ancillary petition, it is possible to order the parents in a divorce proceeding to pay not only the necessary child support after the divorce, but also the child support during the period after separation and before the divorce2. The Supreme Court has allowed for the costs raising a minor child incurred during separation to be claimed together with child support after divorce in a divorce proceeding3.

To calculate child support, the said Standard Calculation Table (now the revised one) is widely used in practice. The living expenses of the child are divided between the parents according to their respective capacities considering the parents' basic income.

It is also important to note that changes to child support, such as an increase or decrease in child support or an extension of the sharing period, are permitted where there are unavoidable circumstances due to changes in the father's or mother's financial or living conditions or the living conditions of the child (Art 880). In addition, even if the person liable to pay has lost his or her job, child support may be calculated based on potential capacity to work when there are no objective and reasonable circumstances that restrict work, but the person is not working due to subjective circumstances, and this is deemed unfair in the sharing of child support4.

With regard to ensuring the fulfilment of child support, it is first possible to use the family court’s admonishment and order to make the responsible parent comply5. The same applies in the case of an ancillary petition in divorce proceedings6. Secondly, if there is a default in the periodic payment of child maintenance, compulsory execution can be initiated not only for the defaulted portion but also for the future portion of the payment7. In doing so, the debtor's salary can be seized. In addition, if the person obliged to pay child support owes other debts, child support payments can be prioritised to the extent of up to one-half of the salary8. Furthermore, in the event of

1  Art 32(1) of Personal Status Litigation Act 2003.

2  The Supreme Court, 10 April 1997, Minshu Vol. 51 No. 4 at 1972 and 30 March 2007, Shumin (Collection of Supreme Court case) No. 223 at 767.

3  Decision of the Supreme Court, 10 April 1997, Minshu Vol. 51 No. 4 at 1972.

4  Decision of Tokyo High Court, 19 January 2016, Hanrei Times No. 1429 at 129. 5  Art 289 of Family Affairs Procedure Act 2011.

6  Art 38 and Art 39 of Personal Status Litigation Act 2003.

7  Art 151-2(1)(iii) of Civil Execution Act 1979 (revised in 2019). 8  See Art 152(3) of Civil Execution Law 1979.

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